In Ohio, it is a criminal offense to engage in sexual conduct with another when his or her ability to consent is “substantially impaired” because of a mental or physical condition. There is no mechanism for persons with intellectual and/or developmental disabilities to receive judicial notice of whether their ability to consent is “substantially impaired” prior to criminal adjudication, nor is there a way for them to affirmatively prove that they have the capacity to consent to sexual activity. Thus, under Ohio law, intellectually and/or developmentally disabled individuals may be functionally and irrevocably barred from engaging in sexual intimacy for fear of criminal penalties against their partner.
Ohio’s criminal sexual violence laws serve an important function by protecting vulnerable populations. However, they may also harm those they are designed to protect by stripping entire classes of persons from engaging in lawful sexual intimacy without providing any remedy for those that choose to do so. In Lawrence v. Texas, the Court held that the Fourteenth Amendment right to privacy includes the right of adult persons to engage in consensual sexual activity. Ohio undermines these privacy rights when it fails to allow individuals to demonstrate that they are deserving of the chance to prove they are capable of consenting to sexual activity.
This Note provides a solution to this problem, balancing the need to protect vulnerable populations against sexual violence with an individual’s right to privacy: the creation of a judicial bypass mechanism allowing an individual to reclaim his or her right to engage in consensual sexual activity by demonstrating that he or she is sufficiently well-informed and mature to make the decision to engage in consensual sexual activity.
Melissa S. Obodzinski,
Reclaiming the Right to Consent: Judicial Bypass Mechanism as a Way for Persons with Disabilities to Lawfully Consent to Sexual Activity in Ohio,
70 Clev. St. L. Rev.
available at https://engagedscholarship.csuohio.edu/clevstlrev/vol70/iss4/9